Shelton Padua v. The Managing Director KSRTC and Ravi Kumar

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944** **MACA NO. 2317 OF 2012** **AGAINST THE AWARD DATED 20.06.2012 IN OPMV 266/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT/PETITIONER:** SHELTON PADUA S/O.DUGGLES PADUA,ERANATTU HOUSE,PONNARYMANGALAM,MULAVUKAD,ERNAKULAM. BY ADVS. SRI.T.K.KOSHY SMT.V.V.RISANI ## **RESPONDENT/RESPONDENTS 1 & 2:** 1 THE MANAGING DIRECTOR KSRTC,TRANSPORT BHAVAN,EAST FORT,THIRUVANANTHAPURAM,PIN-695001. 2 RAVI S/O.KUMARAN,PURAPPIYIL HOUSE,KAPRASSERY,CHENGAMANAD,PIN-683578. SRI. ALEX ANTONY SEBASTIAN P.A R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.03.2022, THE COURT ON 05.04.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.2317/2012 2 **M.R.ANITHA, J** ****************** M.A.C.A.No.2317 of 2012 -----------------------------------------------------Dated this the 5[th] day of April, 2022 ## **JUDGMENT** This appeal has been filed by the claimant in O.P(MV) No.266/2006 on the file of the Motor Accident Claims Tribunal, Perumbavoor. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) for the injury sustained by the appellant. 2. It is alleged that on 18.8.2005 at about 7 a.m. while the appellant was riding scooter bearing Reg. No.KL-7/AX-7610 from south to north through the Ernakulam-Thrissur N.H.47, and reached at Perambra, a K.S.R.T.C. bus bearing Reg.No.KL15/5246 driven by the 2[nd] respondent came in a rash and negligent manner from the southern side and hit the scooter ridden by the appellant resulting in serious injuries to him. M.A.C.A.No.2317/2012 3 Immediately, he was taken to St.James Hospital, Chalakudy and from there he was referred at Medical Trust Hospital, Ernakulam, and treated there as an inpatient. 3. It is alleged that the accident occurred due to the rash and negligent driving of the offending vehicle. 1[st] respondent is the registered owner of the K.S.R.T.C. bus. Hence, both the respondents 1 and 2 are jointly and severally liable to pay compensation to the petitioner. The appellant claimed total compensation of Rs.15,00,000/-. 4. 1[st] and 2[nd] respondent filed joint written statement disputing the accident and rashness and negligence alleged against the 2[nd] respondent. According to them the accident occurred due to the careless riding of the scooter by the appellant himself. The K.S.R.T.C. bus bearing Reg.No.KL15/5246 never involved in any accident on 18.8.2005 as alleged. It was actually operating service in Aluva – Thrissur route. While the vehicle reached at Church stop it was seen that a motor cycle overturned in the road about 100 metres away from the bus. The bus was stopped and took necessary steps to take the injured to M.A.C.A.No.2317/2012 4 the hospital with the aid of the passengers in the bus. It is also contended that the appellant/claimant filed a private complaint and ultimately a charge sheet was filed. Hence, the respondents 1 and 2 are not liable to pay any compensation to the claimant. 5. PWs 1 to 3 were examined and Exhibits A1 to A15 series were marked from the side of the appellant. Thereafter, on evaluating the evidence and facts and circumstances, the Tribunal passed an award for Rs.7,82,836/- with the interest @ 8% per annum from the date of application till realisation from respondents 1 and 2 jointly and severally. 6. Dissatisfied with the award passed by the Tribunal the appellant/claimant (herein after be referred as claimant) approaches this Court in appeal. 7. The learned counsel for the claimant would contend that as a result of the accident the appellant had taken earned leave for 34 days and loss of pay for 406 days and that was already granted by the Tribunal and there is no further claim under those heads. But the amount awarded towards disability, transportation charges, extra nourishment, attendance expenses M.A.C.A.No.2317/2012 5 as well as loss of amenities etc. are far below the actual loss and hence he seeks for enhancement under those heads. 8. The learned counsel for the respondents on the other hand vehemently contend that just and reasonable compensation have been awarded by the Tribunal under various heads and no interference is called for in this appeal. 9. In **Raj Kumar v. Ajay Kumar : 2011 (1) KLT 620 (SC)** , a two Judge Bench of the Apex Court laid down general principles relating to compensation in injury cases wherein the assessment of compensation under the head of loss of future earning in different contingencies has been dealt with in paragraph No.8 of the said judgment. It has been provided that where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on such earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. Specifically provided that what requires to be assessed M.A.C.A.No.2317/2012 6 is the effect of the permanent disability on the earning capacity of the injured, and after assessing the loss of earning capacity in terms of the percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings by applying the standard multiplier method used for determination of loss of dependency and if on appreciation of evidence and assessment, the Tribunal found that percentage of loss of earning capacity as a result of the permanent disability is approximately the same as the percentage of permanent disability, the Tribunal will adopt the said percentage for determination of compensation. In paragraph 9, it is further provided that the Tribunal has to first decide whether there is any permanent disability and if so, the extent of the permanent disability and Tribunal has to consider and decide with reference to the evidence (i) Whether the disablement is permanent or temporary (ii) if the disablement is permanent whether it is permanent total disablement or permanent partial disablement (iii) if the disablement percentage is expressed with reference to any specific limb, the effect of such disablement of the limb on the M.A.C.A.No.2317/2012 7 functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining of loss of future earning capacity does not arise and if the Tribunal concludes that there is permanent disability and then it will proceed to ascertain its extent. After the Tribunal ascertains the extent of permanent disability of the claimant based on the medical evidence it has to determine whether such permanent disability has affected or will affect his earning capacity. That in turn involves three steps, that is, first the Tribunal has to ascertain what activity is the claimant could carry on inspite of the permanent disability and what he could not do as a result of permanent disability. The second steps is to ascertain his avocation, profession and nature of work before the accident as also his age. The third step is to find whether the claimant is totally disabled from earning any kind of livelihood or whether inspite of the permanent disability, claimant could still effectively carry on the activities and functions which he was earlier carrying on and whether he was prevented or restricted M.A.C.A.No.2317/2012 8 from discharging his previous activities and functions but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. 10. The Apex Court also described the example of amputation of a hand, permanent physical or functional disablement would be assessed at 60% but if the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be 100% if he is neither able to drive or do carpentry. But, if he is a clerk in Government service, the loss of his left hand may not result in loss of employment and he may still continued as a clerk as he could perform his clerical functions and in that event, the loss of earning capacity will not be 100% as in the case of a driver or a carpenter, nor 60% that is the actual physical disability but far less. It is further found that there may not be any need to award any compensation under the head of “loss of future earnings” if the claimant continues in Government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing of his hand. Sometimes, the injured may continue in service but M.A.C.A.No.2317/2012 9 may not be found suitable for discharging the duties attached to the post or a job which he was earlier holding on account of his disability and would, therefore, be shifted to some other suitable but lesser post with lesser emoluments in which case there should be a limited award under the head of loss of future earning capacity taking note of the reduced earning capacity. 11. In **New India Assurance Company Ltd. v. Satish Chandra Sharma and Another : Civil Appeal No.1579 of 2022 @** **S.L.P (c) No.14350 of 2019** , the Apex Court in a case of injury sustained by a person in Government service, upheld the decision of the Tribunal which refused to grant any amount towards loss of earning power on the ground that the injured continued to earn the monthly salary including the increments except some allowances given due to the nature of posting. Hence, it was found that High Court failed to notice that the injury certificate did not relate to permanent disability in the entire body and had certified 75% disability in the lower limbs and he is not immobilized and can perform and undertake the daily chores without help and assistance and reduced the enhanced compensation from Rs.56,44,378/- to M.A.C.A.No.2317/2012 10 Rs.10,00,000/- in total by adding Rs.3,79,000/- to the awarded amount of the Tribunal, that is Rs.6,21,000/- on the ground that he lost opportunity to take up post retirement employment. 12. In this case, the claimant was initially taken to casuality Medical Officer of Medical Trust Hospital, Ernakulam immediately after the accident and the injuries noted down are: 1) Pain, distension, guarding and tenderness of abdomen 2) Abrasion left leg 3) Pain and tenderness over the pelvic region. Laparotomy showed bladder tear. X-ray of pelvis showed fracture of right superior and inferior pubic rami. Fracture of left inferior pubic rami and acetabulam. Fracture of sacrum. Ext.A10 is the discharge summary issued from Medical Trust Hospital, Ernakulam for the inpatient treatment of the petitioner in that hospital for the period from 18.08.2005 to 17.10.2005. The diagnosis was Tile's Type C3 pelvis fracture with transverse fracture left acetabulam with foot drop. X-ray of pelvis with both hips AP showed fracture left sacral ala, with IS disruption, fracture left acetabulam, fracture superior and inferior pubic ramus (L). X-ray of pelvis judet views and CT of Pelvis showed M.A.C.A.No.2317/2012 11 transverse fracture left acetabulam, comminuted fracture left sacral ala with IS disruption, fracture iliac crest post aspect right with anterior opening of right IS joint. On 18.8.2005 Upper tibial skeletal traction was given. Underwent haematoma evacuation of left thigh and spinal region on 25.8.2005, 10.9.2005 and 17.9.2005. He had intermittent bouts of fever which settled with IV antibiotics and haematoma evacuation. Urology consultation was given for incontinence of urine and continue catheterization till patient is mobilized. Traction was removed on 4.10.2005 and check X-ray showed that position was maintained. Ext.A11 is disability certificate issued by Dr.Mohammad Ali, Consultant in Orthopaedics, Taluk Headquarters Hospital, Fort Kochi who examined the claimant for assessing the disability. In the disability certificate it has been noted that the petitioner got inability to lift left foot and numbness of left leg. He also got inability to walk fast and inability to squat. He got pain over back and left hip. His left lower limb had shortening and left hip movements accordingly reduced and 22% whole body permanent disability was assessed by the Doctor. He had undergone total 63 M.A.C.A.No.2317/2012 12 days inpatient treatment and an amount of Rs.4,45,078/- was awarded towards actual medical bills produced. So, the treatment records as well as medical bills produced from the side of appellant coupled with the disability certificate would speak in volumes about the injuries as well as the disability suffered by the appellant. Two discharge certificates issued from the Medical Trust Hospital have been produced and he had undergone prolonged inpatient treatment of 63 days also. 13. Admittedly, the claimant in this case, is thirty years old Agricultural Officer at the time of accident. At the time of examination before Court as PW1, he was working as Scientist. So, that would go to show that inspite of the accident and the resulting injuries and disabilities suffered by him, he has been promoted to a higher rank and there is no loss of income as such to him. During the course of examination, PW3, Dr.Mohammad Ali, Consultant in Orthopaedics, Taluk Headquarters Hospital, Fort Kochi who issued Ext.A11 disability certificate, categorically stated that he had examined the appellant and issued Ext.A11 certificate and that the disability of 22% noted is permanent. M.A.C.A.No.2317/2012 13 Even though it was put to him that 22% permanent disability certified is very high, he denied that. But, at the same time, he admit that he has not assessed the occupational disability of the appellant. Ext.A11 certificate would specifically state that left lower limb has an apparent shortening of 2.5 cm. His hip movements are greatly reduced, flexion upto 70%, the sensation of left leg is diminished and left ankle movement is reduced. So, the injuries and permanent disability caused to the appellant would definitely reduce his earning capacity after the retirement. Being a Scientist in Agricultural Department, he could have taken other assignments after retirement. During cross-examination before the Court, as PW1 in the proof affidavit he categorically stated that grievous injuries have been sustained to his hip bones as well as other parts of the body. So, legally though he will not be able to claim any compensation towards loss of earning power during the period of service, compensation can be awarded towards loss caused in earning income by taking post retirement employment during the post-retirement period by taking the income notionally. M.A.C.A.No.2317/2012 14 14. Accident was in the year 2005. As per **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , his income can notionally be taken as Rs.5,000/- per month. Hence, towards loss caused in earning income by taking post retirement employment, he can be awarded Rs.1,18,800/- (Rs.5,000 x 12 x 9 x 22/100). The Tribunal already awarded Rs.71,280/- towards disability. So, deducting that amount under the above head, the appellant/claimant is entitled to get Rs.47,520/-. 15. The learned counsel raised a contention that while awarding loss of earning, Tribunal reduced the amount of Rs.80/towards PCA. But, only because of the accident and the resultant injuries, he could not go to the office and avail that benefit. Since claimant did not report for duty, amount towards PCA need not be awarded. Reasoning of the Tribunal in that regard is only to be approved. 16. In view of the prolonged treatment and four surgeries undergone by him, the learned counsel seeks for further M.A.C.A.No.2317/2012 15 enhancement of compensation towards pain and suffering but an amount of Rs.40,000/- has already been awarded. In view of the grievous nature of the injuries and the various procedures of treatment undergone by him as well as 63 days of inpatient treatment, an amount of Rs.20,000/- is further awarded towards pain and suffering. Towards loss of amenities, Rs.30,000/- has already been awarded. A further amount of Rs.10,000/- can be awarded under that head. 17. So, taking into account the above factors, towards transportation expenses, an amount of Rs.3,000/- can be awarded. Deducting Rs.1,000/- already awarded by the Tribunal, the balance amount is Rs.2,000/-. Towards extra nourishment, only Rs.2,000/- has been awarded. It can be enhanced to Rs.6,000/- in total. Deducting the amount already awarded, balance amount would be Rs.4,000/-. Towards attendant expenses, only Rs.6,300/- has been awarded. Since the accident was in the year 2005, an amount of Rs.200/- per day can be taken as expenses towards bystander expenses. So, towards bystander expenses, claimant is further entitled to get Rs.6,300/- M.A.C.A.No.2317/2012 16 [(Rs.200 x 63) – Rs.6,300]. 18. After discharge from the hospital also, in view of the injury sustained, he might have required assistance of another person. Hence a further amount of Rs.3,000/- can be awarded towards attendant expenses. So, the claimant is entitled to get a total compensation of Rs.82,820/- (Rs.47,520 + Rs.20,000 + Rs.10,000 + Rs.6,300 + Rs.4,000 + Rs.2,000 + Rs.3,000) which is rounded off to **Rs.92,850/-** . 19. In the result appeal allowed. The claimant is allowed to realise enhanced compensation of **Rs.92,850/-** (Rupees Ninety Two thousand eight hundred and fifty only) with interest at 7.5% from the date of petition till realisation. The 1st respondent/KSRTC shall satisfy additional compensation granted in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment. 20. The claimant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a M.A.C.A.No.2317/2012 17 copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. (Sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge